Friday, September 15, 2006

Natural Law

Friday, September 15, 2006
First Annual Scarpa Conference

“From John Paul II to Benedict XVI: Continuing the re-evangelization of law, politics, and culture.” Villanova Law School, Villanova, PA

Five out of the nine Justices on the U.S. Supreme Court are Catholic. Perhaps this fact alone is sufficient to spark interest in the Catholic Legal Studies movement, which has a strong presence in a few Catholic universities, notably Villanova and Notre Dame Law Schools. Robert Cochran, in “The Catholic Court Appeal,” (Touchstone, July/August 2006) notes that three Catholic doctrines in particular – natural law, subsidiarity, and religious freedom – “yield habits of thinking that make Catholics attractive candidates to the broad range of the American people.”

This may be true, although I think that a simpler explanation may consist in the fact that, in Catholic tradition, the “habits of thinking” have never been wholly alienated from religious faith.Indeed, thinking about law, the state, individual freedom and authority has characterized the Catholic tradition almost from its beginning. There were long debates in past ages about the respective roles of reason and faith. Today, amidst the civilizational entropy that discourages such philosophical excursions, we moderns are becoming aware that reason itself is a faith – that reason itself is an exercise in “good faith.” And for this type of reason – which I would distinguish from reductionist or purely instrumental uses of the intellect, which comprises much of modern science and its imitators in the “humanities” – there is also great support in the Catholic tradition.

In the reductionist view of reason that we have inherited from Descartes, the dynamics of reason split off from the act of thinking. The world, in a sense, was to be a copy of my idea, though what was to assure the correct correspondence between idea and world was left uncertain. Perhaps because of this danger of subjectivism, scientific reason developed a single-minded focus on empiricism. It abandoned philosophy as the realm of uncertainty, and concentrated solely on “getting things done.” Dynamics became a physical and material subject, with great results in machinery and technology, as we know. But is there a “dynamics of reason”? The notion is implicit in Catholic theology, which admits in human nature “a capacity or a suitability (obediential potency) to receive the supernatural.”

Modernity, in rejecting the obedience, also rejected the potency, and it must be a historic irony that the United States finds itself with five Catholic justices in an era in which the abortion right is so fanatically held. For abortion, more than any other social fact, shows the tragic inability of reason to imagine all the stages from potency to act. Reason, reduced to a “choice,” creates only a culture of death.

But perhaps people really do not have a “choice” in the matter of whether to reason or not to reason. It is the dim outlines of a deeper necessity that are beginning to show through the facile assumptions of our age. The necessity for reason is a concept very close to law, for though reason is necessary, grace is not subject to necessity. But the potential for grace “dynamizes” reason and makes it something much closer to a sort of movement of the soul, than solely the exercise of copying or extrapolating performed by the intellect. It is actually this movement of the soul that makes possible a real life of the mind and a circulation and airing of ideas. The development of freedom depends on this, but one that is “real,” grounded in necessity, and more than mere “choice.”

I hope that the strong Catholic presence on the Court is a sign that Americans are turning toward a real concept of freedom instead of the empty concept of “choice” that has so paralyzed our nation with the spectacle of bread and circuses. For real freedom is the capacity to perform a deed or work and bring it through to completion and fruition. Real freedom thus embodies the dynamics of thinking – all the way from potency to act.

The speakers at the Scarpa Conference were not exactly on this wavelength, yet it was interesting to note intimations and analogies.

Rick Garnett from Notre Dame, for example, noted that the First Amendment of freedom of speech implies advocacy, persuasion, conversion – changing minds. The prototype for this type of activity is evangelization, yet even its secular form persuasion grants that minds can be changed – that there is a potential for movement in the mind.

Avery Cardinal Dulles, the keynote speaker, reviewed the ideas of Joseph Ratzinger, especially the public dimensions of the act of faith, and how the Church must “speak from the interior of liberty” for all.

The most interesting talk for me was that of Professor Patrick Brennan, “The Decreasing Ontological Density of the State in Catholic Social Doctrine.” He emphasized the differences in the concept of natural law held by the current Pope and his predecessor, from all previous Popes in the 20th century. The classical theory of natural law endorsed by Aquinas and his commentators up to Maritain, emphasized the participation of civic law in the divine law. Man is able to fashion law because he has first received it, and part of the eternal law is “written into the heart” of the rational creature. Thus the civic realm is “ontologically grounded” in the divine order.

Dr. Brennan placed great emphasis on the concept of participation, which is a key concept to the idea of the “dynamics of thinking” that I have been unfolding. For obviously, there is a great difference between participant thinking and the more passive kind which views the world as a machinery of matter which, it is granted, it has proven very adept at manipulating. Brennan remarked also that the theory of evolution put an end to the older theory of natural law, which presupposed an interconnection between reason and nature.The latter 20th century was another blow to natural law theory. Totalitarian social arrangements – so beholden already to notions about the “machinery of matter” it supposed Nature to be - also hearkened back to Thomas Hobbes’ “Absolute State” – a state not bound by natural law. In the thought of John Paul II, the State was an “unworthy agent” – it no longer possessed a theological mandate and had no image of divine government. Joseph Ratzinger has also emphasized this “Augustinian” view of the State – the absolute divergence of the City of Man from the City of God.

Brennan’s commentator, Mark A. Sargent, Dean of Villanova Law School, asked the pointed question: what is the source of authority of the state if it is viewed in these terms? If the state is nothing more than a depraved band of thieves, there is not much wiggle room for Catholic social teaching.He is right if the theory of natural law remains defined by its historic boundaries. We await the full modern elucidation of natural law, which I believe must unfold in the context of the ideas of participation and dynamics. For it essential to recapture a concept of the active mind, participating with a full range of human attributes – emotions, esthetics, worship, devotion, imagination. It is intellect itself which needs to acquire obediential potency – for if we do not do this, nothing else we do will matter at all.